Legal Liability

Author’s NoteThe information contained within this lecture series is based upon over 17 years professional experience in the athletic training, sports medicine, and emergency medical fields, and numerous athletic training and sports medicine references and resources. A list of those references and resources is located at the end of this presentation.

The purpose of this series is to provide instructors in athletic training and sports medicine, primarily in the secondary schools, another educational resource that they may use to enhance the educational studies of their students.

NATA vs BOCNational Athletic Trainers’ Association (NATA)

Establishes standards for professionalism, education, research and practice settings

Entry Level Athletic Training Clinical Proficiencies

Code of Ethic

Board of CertificationAward the ATC credential

Role Delinetion Study

Standards of professional practice

ATC Domains

DomainsPrevention

Clinical evaluation and diagnosis

Immediate care

Treatment, rehabilitation, and reconditioning

Organization and administration

Professional responsibility

State Practice Governance

Licensure

Certification

Registration

Legal Considerations

Legal Concerns of the ATC

In recent years negligence suits against schools, coaches, and ATCs arising out of sports injuries have increased in both frequency and the amount of damages awardedLiability means being legally responsible for the harm one causes another person

ATCs must take great care to insure they are following proper procedures to reduce the risk of being sued by an athlete and being found negligent

The Standard of Reasonable Care

Negligence is the failure to use ordinary or reasonable care – care that a person would normally exercise to avoid injury to themselves or others under similar circumstances

Negligence

Negligence can result fromMalfeasance – is the willful and intentional action that injures a party.

Misfeasance - is the willful inappropriate action or intentional incorrect action or advice

Nonfeasance - is the failure to act where action is required - willfully or in neglect

Gross Negligence - is a legal concept which means serious carelessness

The Standard of Reasonable CareThe Standard of Reasonable Care assumes that an individual is neither exceptionally skillful nor extraordinarily cautious, but is a person of reasonable and ordinary prudenceNormally when someone is sued for negligence, the actions of a hypothetical, reasonably prudent, person will be compared to the actions of the person being accused of negligence to determine if their actions were reasonableThe standard of reasonable care requires the ATC act according to the accepted standard of care for an individual with similar educational background and training

Torts

Torts are legal wrongs committed against the person or property of anotherThese acts may emanate from one of the following:

Acts of Omission – failure to perform a legal dutyActs of Commission – committing an act that is not legally his or hers to perform

Negligence

When an ATC is sued by an athlete, the complaint typically is for the tort of negligenceNegligence is alleged when the individual…

Does something that a reasonably prudent person would not do or…Fails to do something that a reasonably prudent person would do under similar circumstances

Negligence

In order to win their lawsuit, an athlete must prove the following…

That the ATC had a duty to act and exercise reasonable care

That the ATC breached that duty by failing to use reasonable care

That there is a reasonable connection between the failure to use reasonable care and the injury that was suffered or that the ATCs actions, or lack thereof, made the injury worse.

Negligence

The most common example of negligence that occurs in sports is when an injured athlete is moved from the field or court in order to allow play to continue without properly evaluating the player’s injuryFurthermore, it is expected that a person possessing more training in a given field/area will possess a higher level of competency than someone who is not

For example an ATC would be judged differently than a coach would

Statute of Limitations

A Statute of Limitations sets a specific length of time that individuals may sue for damages from negligenceTypically the amount of time varies from state to state, but generally plaintiffs have 1-3 years to file a suit for negligenceIn many states, minors are allowed to file a suit up to 3 years after they turn 18, so an injured athlete’s cause of action for negligence may remain valid for many years

Assumption of Risk

An athlete assumes the risk of participating in an activity when he/she knows of and understands the dangers of that activity and voluntarily chooses to be exposed to those dangersAn assumption of risk can be expressed in the form of a written waiver signed by the athlete and/or their parents or implied from the conduct of an athlete under the circumstances of his/her participation in an activity

Assumption of Risk

Assumption of risk may be used as a defense by the ATC in a liability lawsuit

The ATC must prove, however, that the athlete assumed this risk by producing the document signed by the athlete or their parents and…Proving that the athlete knew about, understood, and voluntarily accepted the risk associated with the activity

Assumption of Risk

Assumption of risk is subject to many and varied interpretations by the courts, especially when it involves a minor

Therefore ATCs should use great caution when relying on waivers and releases of liability when it involves athletes under the age of 18.

Product Liability

Manufacturers of athletic equipment have a duty to design and produce equipment that will not cause injury as long as it is used as intended

A warranty is the company’s guarantee that the product is safe

Warning labels placed on football helmets inform the player of the possible dangers associated with using the product

Many schools require players to sign a form stating they understand these warnings

NOCSAE (National Operating Committee on Standards for Athletic Equipment) is the organization that establishes minimum standards for equipment that must be met to insure safety

Preventing Liability

Liability can be prevented by doing the following:Warning athletes of potential dangers inherent in the sportSupervise constantly and attentivelyProperly prepare and condition athletesProperly instruct players in the skills of the sportEnsure proper and safe equipment/facilitiesEstablish good personal relations with athletes and their parentsEstablish specific policy and procedure guidelinesDevelop and follow your emergency planKeep accurate records

Preventing Liability

Liability can be prevented by doing the following:Be familiar with the health status of your athletes and their medical historiesHave a detailed job descriptionObtain written consent for providing health care, especially with minorsMaintain confidentiality in all mattersDon’t dispense prescription medications and use extreme care in dispensing over the counter medicationsUse only the therapeutic methods you are trained to useDon’t use or permit the use of faulty equipmentDon’t allow untrained persons to do therapies, etc

Preventing Liability

Liability can be prevented by doing the following:Work cooperatively with your supervising physicians

Don’t permit injured athletes to participate without written consent from a physician

Determine who makes the final decisions regarding a players status and document it

Purchase liability insurance if your employer does not provide it

Use common sense in making all decisions about an athlete’s health and safety

DOCUMENT, DOCUMENT, DOCUMENT!!!

The Issue of Consent

While the issue of consent is not as critical in AT as it is in other health care areas, it is still necessary to get consent to treat patients before you start caring for them, or before you send a student-athlete (under 18) to a doctor for medical care

Types of Consent

The are 4 types of consent that are legally recognized

ACTUAL CONSENT = usually oral consent given by the patient after they have been informed about what you are going to do for (or to) them. AKA, Informed Consent

IMPLIED CONSENT = in a true, life or death, emergency the law assumes that a patient would give permission for treatment if they were able to

Types of Consent

Minor’s Consent = the right to consent is given to the parent if a child is < 18 years old. This right can also be extended to person’s very close to the minor, who can be considered as a parent. Parents can also sometimes provide written, prior consent (not always accepted)

Consent of the mentally ill = consent is given by a court or an assigned guardian

The Issue of Abandonment

Abandonment is willfully leaving a patient, or stopping care for a patient, unless you are relieved by (or care is taken over by) another person of equal or higher training

What about “non-compliant” patients?Document, document, document...

Good Samaritan LawGood Samaritan is a person who gratuitously gives help or sympathy to those in distress.

Conditions vary from state to state, but immunity generally applies only when emergency first aider:

Acts during an emergency

Acts in good faith

Acts without expected compensation

Is not guilty of misconduct or gross negligence